https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1476
The objection on limitation could not be fully determined at the preliminary stage because the claims for overtime and underpayment turned on contested facts, including whether the alleged wrongs amounted to continuing injury and when they ceased; the court therefore deferred determination of limitation to trial and...
Source-derived case information.
- Citation
- [2026] KEELRC 1476 (KLR)
- Parties
- Claimant: Gerald Bitok; Respondent: Absa Bank Kenya Plc
- Court
- Employment and Labour Relations Court
- Jurisdiction
- Kenya
- Case Number
- Cause E018 of 2025
- Procedural Posture
- Employment Cause / Ruling on Notice of Preliminary Objection
- Outcome
- Preliminary objection deferred
- Judges
- ["J Rika"]
- Legal Topics
- Preliminary Objection, Overtime Claims, Underpayment of Salary, Continuing Injury, Jurisdiction, Breach of Contract
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gerald Bitok
Claimant
Absa Bank Kenya Plc
Respondent
Procedural Posture
Employment Cause / Ruling on Notice of Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection on limitation was properly taken where the facts were contested
- 2 Whether the overtime and underpayment claims were time-barred under section 90 of the Employment Act as continuing injuries
- 3 Whether the court could determine limitation preliminarily without evidence on when the injury ceased
Ratio Decidendi
The objection on limitation could not be fully determined at the preliminary stage because the claims for overtime and underpayment turned on contested facts, including whether the alleged wrongs amounted to continuing injury and when they ceased; the court therefore deferred determination of limitation to trial and final judgment.
Court Disposition
Preliminary objection deferred
Orders
- Full determination on the objection is deferred.
- Objection may be canvassed in closing submissions at the close of trial.
Full Case Text
Judgment text and source record
1 paragraphs
Bitok v Absa Bank Kenya PLC (Cause E018 of 2025) [2026] KEELRC 1476 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1476 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Cause E018 of 2025 J Rika, J May 29, 2026 Between Gerald Bitok Claimant and Absa Bank Kenya Plc Respondent Ruling 1.The Claimant filed this Claim on 9th April 2025. 2.He seeks overtime pay; unpaid salary; damages for breach of contract; costs; interest; and any other suitable relief. 3.The Respondent filed a Notice of Preliminary Objection, which is the subject matter of today’s ruling. 4.Objection is based on Section 89 [previously 90] of the Employment Act, which states that claims based on a contract of employment, should be filed within 3 years from the date the cause of action accrues. 5.Overtime claim is in the nature of a continuing injury, and must be instituted within 12 months from the date of cessation. 6.The same submission is made with regard to the claim for underpayment of salary. 7.The Court does not have jurisdiction to entertain these claims. 8.The Claimant replies in his submissions dated 31st March 2026, and affidavit sworn on 24th December 2025, that preliminary objection cannot be raised where the facts are contested. In continuous injury, time begins to run when the injury ceases. Injury was persistent, and only ceased on termination, which was on 7th July 2022. The Court Finds: - 9.The Court would agree with the Claimant that the facts are contested, and the claims on overtime and underpayment, require that the parties are heard on merit. 10.There is weight in the proposition that recurring obligations may not be treated as isolated causes of action. 11.The Claimant resigned on 6th August 2022, and filed his Claim on 9th April 2025. 12.The rebuttable presumption, is that this is a Claim based on a contract of employment, which must be brought within 3 years next after the act, neglect or default complained of. It was filed in April 2025, while the Claimant resigned in August 2022. 13.If the act, neglect or default complained of comprises continuous injury, with separate limitation of time, this is a matter of fact, to be established through evidence. 14.It must be known when the injury ceased, and when time started running, once it is established that the act, neglect or default complained of, is in the nature of continuing injury. 15.The Court can only make an informed decision after the substantive trial, not preliminarily. 16.It is ordered: -a.Full determination on the objection is deferred.b.Objection may be canvassed within the closing submissions, at the close of the trial.c.A full determination on the objection to be made with the Judgment.d.Costs in the cause. DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAKURU, UNDER RULE 68 [5] OF THE E&LRC [PROCEDURE] RULES, 2024, THIS 29TH DAY OF MAY 2026.JAMES RIKAJUDGE